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oxycontin setllement - privacyThe P Word

You all know about the . . . N word, right? I want to slide us a couple of letters further along the scale of the alphabet song and have a conversation about . . . the P word.

Can you tell me what the P word is? No? Okay, let me give you a hint. Oh, let’s just cut to the chase. I’m talking about . . . privacy. The P word is . . . privacy.

Let’s take a little survey here. When I say “privacy,” you tell me what pops into your mind. I actually conducted a little survey on this. I asked ten friends (aw, c’mon, I do too have ten friends) what pops into their minds when I say “privacy.” Eight of them answered, in one form or another, that I must have been referring to the question of what’s more important as between our national security and the right of cell phone owners to prevent the government from accessing their cell phone data. (I would tell you what the other two said, but, hey, it would invade their . . . privacy.)

Given the recent San Bernardino and Paris terrorist events, national security versus cell phone privacy was a pretty logical response. But we’ve already had that discussion. Consider for example, this earlier blog.

The Historical Right To Privacy

Let’s talk a little bit about privacy in general. Specifically, when is the right to privacy paramount and when must it give way to something else? In most instances, the right to privacy is cherished and understandably very important. I don’t think we have to dwell much on that. However, arguably at least, there are some exceptions.

The Public Safety Exception

Public safety is one exception that comes to mind. Tracking down and intercepting terrorists who would do innocent persons mortal harm. What about the privacy of gun manufacturers whose products can threaten our safety and well-being? What about manufacturers of drugs with life-threatening ramifications?

Sandy Hook

In 2014, the families of the Sandy Hook victims filed suit against the manufacturer and distributor of the gun that Adam Lanza used to kill 20 children and six adults. The lawsuit claims negligent marketing of the AR-15 “killing machine.” In that suit, the plaintiffs served discovery requests concerning how this weapon was promoted. For two years, the defendants refused to produce a single document. The wheels of justice grind slowly indeed, but, finally, the Court recently ordered the defendants to comply with the discovery requests.

Problem solved, right? Wrong! The defendants have still to produce a single document. They have now filed a motion for a protective order seeking to ensure that what they produce will not be available to the public. They maintain that such public disclosure would invade their privacy and harm their . . . business interests.

OxyContin

You will recall that we have also reported here on the OxyContin controversy. In a Kentucky town rife with OxyContin addiction deaths, families sued the OxyContin manufacturer. A confidential settlement of that case was obtained. The manufacturer paid $24 million, but admitted no wrongdoing. (One wonders what they would have been required to pay if the case had gone to trial and they had been found guilty of wrongdoing.)

The OxyContin manufacturer thought it was home free. Write a $24 million check and then continue business as usual. Not so fast. News media outlets filed a freedom of information request for documents privately produced in the lawsuit that would publicly reveal the manufacturer’s internal records, showing–perhaps–that the manufacturer was aware that it’s marketing practices concerning the drug were . . . fraudulent. The manufacturer refused to produce the requested material on grounds of privacy and likely harm to its business interests.

The Surprise Ruling

To the manufacturer’s shock and dismay, the Kentucky court just ruled that the manufacturer must make the material available to the public. (The court provided a stay on compliance until the manufacturer can appeal the ruling to a higher court.)

If the lower Kentucky court’s ruling is upheld, this will be a significant infringement on the right to privacy. Is this development just a short-lived blip on the right to privacy that will be shot down by the appellate court or is it a harbinger of things to come? Let’s take a closer look.

Enter The . . . Fiduciary

In general, if I hire Joe the plumber to repair the sink in my home, I am known as the “principal” and Joe is known as my “agent.” He owes me a duty to fix my sink in a responsible manner, but he does not owe me much more than that. He does not have to tell me why he chose one part over another, perhaps because he had excess inventory he was trying to use up even though my job didn’t necessarily require the part he used. If I try to find out the facts, he can hide under the rubric of privacy. In essence, the applicable principle is “Buyer beware.”

Is it any different if I hire a lawyer or a doctor? It is. Rather than a mere agent, the lawyer or doctor is what is known as my “fiduciary.” What does that mean? It means, in essence, that he is charged with being my hero, my “super-agent,” because his services are fundamental to my well-being. Simply put, a doctor treating me for a possibly life threatening ailment, or a lawyer assisting me with my financial well-being, owes me a greater duty than Joe the plumber hired to fix my sink. The cornerstone duties of a fiduciary are full disclosure to his principal, and actually putting the interests of the principal ahead of the interests of the fiduciary. Imagine that!

So, the doctor has to tell me if he is ordering some procedures that I might not really need because the procedures mean more money for him and because he’s struggling to make the payments on his fancy car.

Others beside lawyers and doctors are also fiduciaries, or “quasi-fiduciaries.” Banks are fiduciaries. So are insurance companies. Not quite as clear, but drug manufacturers are perhaps fiduciaries too. Or at least one can argue that they should be because of their performance in the arena of public safety and well-being.

And The Envelope Please

As a blogger (dare I say writer?), and when I am not acting as the lawyer that I also am, I am not a fiduciary. I am not required to share my opinions. That would violate my right to privacy. However, I’m going to do it anyway, at least this one time. Because I’m a nice guy. And because I want the manufacturer and promoter of OxyContin to take it in the shorts–if it falsely marketed the drug to increase its revenues.

So I believe the manufacturer of OxyContin owes the public a fiduciary duty to disclose all that it knew or should have known from facts in its possession concerning OxyContin. If (repeat if) it turns out that it’s marketing practices were fraudulent, and that many who purchased and used OxyContin have claims against it for damages suffered in the face of concealed information concerning the drug, well, aren’t the consequences of such public disclosure of those facts just too bad–for the manufacturer. If it didn’t conceal anything, it will survive the invasion of its privacy–a cost of it doing business in this sensitive, life threatening area.

Who knows, if it was less than forthright, maybe next time it will have to consider being a tad more honest. Now wouldn’t that be refreshing! Maybe even . . . addictive.


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  • Jane S Taber

    There you go again…. The bad bad Dr.

    What about the lawyer who does not reveal conflict of interest or charges you more hours than needed
    so he can pay for his Country club dues… just saying.

    And OxyContin… Many a patient does not follow the prescribed regimen and overuses the chemical.
    I believe there are more instances of overuse than misleading advertising.
    The majority of people do not misuse.

    To look to punish companies is a disservice to the product that helps the majority.

    There are unintended consequences in this instance.

    Medicines that are useful might be taken off the market.

    • Hey, Jane, I love when you visit and keep me on my toes. I really do–especially when your comments exhibit the intellect you obviously have. However, in this instance, at the risk of raising your ire all over “again” by questioning the performance of another “bad bad doctor,” I think you might want to consider asking your eye doctor for a refund on your latest pair of reading glasses. (After all, it couldn’t possibly be you who got off the track, could it?)
      So, “there I go again . . . . The bad bad Dr.” Where in THIS blog did I “again” or otherwise utter so much as ONE single bad word about a doctor–ANY doctor? Didn’t think I did. Just went and reread the blog to be sure. Confirmed that I didn’t. Perhaps you’ll take another moment, re-read the blog, and show me (quote) the language where you think I did? This blog was about a drug manufacturer, not ANY doctor. More on that in just a moment.
      “What about the lawyer” who engages in misconduct, you ask? Is there something in my blog that causes you to think I am favoring lawyers over any other fiduciary? Didn’t I specifically mention that lawyers are fiduciaries who should be punished if they put their own interests ahead of their clients or if they fail to make full disclosures to their clients? If you missed it, please take another look.
      I have no quarrel with you observation than many patients misuse/overuse OxyContin. But that’s just not what this blog is about. Such patient misuse is not a defense to the manufacturer properly discharging his disclosure obligations as a fiduciary. However, proper disclosure by the manufacturer might reduce improper patient use of the drug if the patient was better informed of the risks BEFORE he becomes addicted to the drug.
      You state that you “believe there are more instances of overuse than misleading advertising.” With all due respect, how would you possibly know that? Do you have any data to support your wholly unsubstantiated remark? But, more to the point, why would it matter even if your contention is correct? Would patient misuse justify the drug manufacturer KNOWINGLY putting out misleading information to the public? Why shouldn’t the manufacturer have to disclose the high potential for addiction and the importance of not using the drug more than once every 12 hours? And expressly stating that if that proves insufficient, then the patient should immediately suspend use of the drug and contact his doctor.
      You go on to state “to look to punish companies is a disservice to the product that helps the majority.” My observation is not necessarily to outlaw the drug. (In a prior blog, as you know, I suggested better prescribing procedures, but I did not suggest taking the drug off the market.) What I said is that manufacturers should not be allowed to advertise in a way it knows is false. I did not even say the manufacturer here has falsely advertised. I said “if.” Please read again more closely what I said–instead of commenting on what I did not say.
      As for your concluding remarks, I cannot believe you would suggest that false advertising should be permitted to keep the drug on the market. if false advertising is necessary to make the manufacture of the drug economically viable, then it should not be permitted. Do you honestly contend otherwise? And do you think that’s even remotely the economic circumstances here when the manufacturer paid $24 million just to settle one case against it, and to try to prevent the truth from coming out? As a matter of public record, the sale of OxyContin has made the family who owns the manufacturer billionaires.
      All I said in this blog, Jane, is that drug manufacturers who falsely advertise should bear the consequences of their actions, and that their records should be available to the public to ascertain the truth. That was the holding in the Kentucky case on which I was reporting, nothing more and nothing less. If they’ve done nothing wrong, they should have nothing to worry about.
      And I did not utter a single word about any doctor–other than your eye doctor.

      • Fred Taber

        I don’t see the OxyContin or the drug manufacturer as a fiduciary since they don’t have a relationship with the consumer of the product. Clearly, the prescribing physician is the fiduciary.

        • Great, we are now focusing on what the discussion should be. I appreciate your argument, but that is simply not how the long established law of fiduciary duty works. The duty extends to any foreseeable recipient or user of the product or service in question. Allow me to illustrate:

          If a CPA provides financial services to a company, say Microsoft, I think your observation/argument is that the fiduciary duty is owed by the accounting firm solely to its client, Microsoft, because that’s where the relationship is. The accounting firm doesn’t even know who the shareholders are. Please don’t shoot me, I just the messenger (although I agree with the message), but the law says the fiduciary duty extends to the shareholders of Microsoft (and future shareholders as well as present shareholders) because the accounting firm knew or should have known that the present and future shareholders would rely on the accounting firm’s work product.

          Another interesting example: A radiologist oversees an MRI study and writes an accompanying report. Based on my experience, the report is generally provided only to the referring doctor, and not to the underlying patient who is the subject of the MRI study. Would you argue that only the referring doctor who informs the patient of the radiologist’s results owes a fiduciary duty to the patient, and not the radiologist as well? I believe the law would find both the radiologist and the referring doctor are fiduciaries of the ultimate patient.

          In this instance, the Kentucky court found that the drug manufacturer owes a fiduciary duty to the OxyContin consumer, and perhaps to prospective future users of the drug as well. This is precisely why the court ordered the records of the drug manufacturer released to the public. This does not mean that the prescribing doctor is not a fiduciary of the user as well. They both are. It also remains to be seen, as I reported in this blog, that the trial court’s decision will be appealed and may not be upheld. The trial court actually stayed his ruling pending the outcome of the appeal, demonstrating that he’s not over the top against the manufacturer.

          The question, then, is what exposure follows from the status. The argument offered to the court is that IF (repeat IF) the manufacturer’s internal records showed that it knew or reasonably should have known of the addictive infirmities of the drug, and that the drug would not in many patients last for 12 hours, and would raise the specter of interim withdrawal and greater craving than once every 12 hours,then it would be liable for the consequences of sugarcoating or downplaying those possible circumstances.

          The prescribing doctor is also a fiduciary, but that doesn’t necessarily lead to liability if the doctor had been hoodwinked by the manufacturer and didn’t know, or have reason to know, that what the manufacturer was saying was false or misleading.

          See, I’m not at all saying, “again,” a “bad, bad doctor”!

          And I didn’t write this blog because I have knowledge that anyone, including the manufacturer, has any liability because I don’t know what the records will reveal (although based on leaks from within the company, I do believe I “know” what those records will reveal.

          I simply believe that the drug manufacturer is a fiduciary and must make its records available for public scrutiny now. What will follow from those records remains to be seen. If they reveal concealment, I think that’s horrific and their should be grave exposure and consequences for the manufacturer. They don’t deserve or get a free pass because the drug is important and helpful to some. That’s no excuse to conceal the truth IF that’s what occurred.

          As for the doctor, that depends on what he knew or reasonably should have known. Just recently, a California physician was found guilty of criminal misconduct in his prescription of OxyContin to three of his patients who overdosed and died. His license was terminated permanently, he has had to regurgitate some $90,000 in fees he collected for writing the prescriptions in question, and he was convicted of second degree murder and he will soon be serving time behind bars. Based on the facts as reported by the media, in my opinion he’s getting exactly what he deserved. Based on the reported facts, THIS doctor is indeed a “bad, bad ex-doctor.” In his sentencing hearing, I believe he admitted as much himself. He, too, was addicted–in his case to the money.

          • Fred Taber

            If fiduciary means the relationship between a trustee and beneficiary, I believe the court is wrong to rule that the drug manufacturer is a fiduciary. By making the drug and then selling it on the open market, the drug manufacturer has absolutely no idea of who the beneficiary is! (Unless it thinks it is financial gain for all prescribing physicians- lol). If the drug manufacturer is accused of concealment in the process of marketing of the drug, then it should be vigorously prosecuted criminally.

          • I feel your “pain,” but you beg the question by your use of the term “beneficiary.” According to the law, the beneficiary in this context is not limited to someone in direct contact with the fiduciary, but rather anyone and everyone the fiduciary intends or envisions might use the product or knows or has reason to know might use the product. In this circumstance where the product is potentially so life threatening, I think this approach taken by the law is sound. The specific identities of users are really not important.

            You conclude by saying “If the drug manufacturer is ACCUSED of concealment . . . then it should be vigorously prosecuted criminally.” That’s close to correct (in my opinion), but a little too loose; it’s not the mere ACCUSATION or suspicion, but the ACTUAL concealment that warrants the vigorous prosecution. The reason for the Kentucky court’s order that the manufacturer’s internal records must be publicly released is to find out if there was concealment, or at least a sufficient likelihood of concealment to warrant such prosecution. I think if a drug manufacturer wants to be in this business of manufacturing a potentially life threatening product for public consumption, it must surrender its privacy concerning what it knows or reasonably should know as a cost of engaging in such business.

            It seems like you and I are now pretty close, the only possibly remaining difference between us being the concept and scope of “beneficiary.”

  • Fred Taber

    You certainly allude to the bad bad doctor!

    “So, the doctor has to tell me if he is ordering some procedures that I might not really need because the procedures mean more money for him and because he’s struggling to make the payments on his fancy car.”

    • I don’t allude to “the bad bad doctor.” That is Jane’s language, not mine. This blog is about a real world court decision that says the OxyContin manufacturer is a fiduciary and has to disclose what it knew to the public. I said I agreed with the decision because that kind of disclosure is the responsibility of ANY fiduciary. Hypothetically, I listed several other fiduciaries, lawyers, doctors, insurance companies. I said before what you quote in isolation: “Simply put, a doctor treating me for a possibly life threatening ailment, OR A LAWYER TREATING ME FOR MY FINANCIAL WELL-BEING, owes me a greater duty than Joe the plumber hired to fix my sink.” I went on to expand on this concept of disclosure in the context of the HYPOTHETICAL doctor, NO DIFFERENT THAN A LAWYER FIDUCIARY OR AN INSURANCE COMPANY FIDUCIARY.
      This blog is about a court that extended the fiduciary concept to a drug manufacturer, essentially for the first time. That is what was newsworthy in the case I reported and in this blog. It is not about doctors or lawyers or insurance companies who have been recognized as fiduciaries forever. I simply used those long-standing precedents to help explain the validity in my opinion of the Kentucky judge’s ruling about a drug manufacturer, not a doctor. This blog is about drug manufacturers, not doctors, not lawyers and not insurance companies. I did not accuse any doctors of doing anything wrong, only saying that it would be wrong to do something like that.
      It is Jane who chose to turn this blog about a drug manufacturer being subjected to the same fiduciary laws that historically pertain to doctors, lawyers, insurance companies and banks too upside down and characterizing it as a blog picking om doctors. Absolute nonsense.